IV. Privi primer seizins, due on the death of each tenant; others are mere fines for alienation of the lands; in some manors only one of these sorts can be demanded, in some both, and in others neither. They are sometimes arbitrary and at the will of the lord, sometimes fixed by custom; but, even when arbitrary, the courts of law, in favor of the liberty of copyholders, have tied them down to be reasonable in their extent; otherwise they might amount to a disherison of the estate.29 No fine, therefore, is allowed to be taken upon descents and alienations (unless in particular circumstances30) of more than two years' improved value of the estate. 131 From this instance we may judge of the favorable disposition that the law of England (which is a law of liberty) hath always shown to this species of tenants, by removing, as far as possible, every real badge of slavery from them, however some nominal ones may continue. It suffered custom very early to get the better of the express terms upon which they held their lands, by declaring that the will of the lord was to be interpreted by the custom of the manor; and where no custom has been suffered to grow up to the prejudice of the lord, as in this case of arbitrary fines, the law itself interposes with an equitable moderation, and will not suffer the lord to extend his power so far as to disinherit the tenant. Thus much for the ancient tenure of pure villenage, and the modern one of copyhold at the will of the lord, which is lineally descended from it. IV. There is yet a fourth species of tenure, described by leged villen- Bracton under the name sometimes of privileged villenage, and age. 12 Ch. Rep., 134. (29) As in the case where the lord is not bound to renew, or, being so bound by the custom, the copyholder is allowed to put in more than one life at a time; and, consequently, several admissions are made at the same time, for which an increased fine may be fairly demanded. The rule generally is, to take for the second life half what the immediate tenant for life pays, and for the third half what the second pays. But this must be understood of persons taking successively; for if they take as joint tenants, or as tenants in common, the single fine only would be due, to be apportioned in the latter case, each paying severally. (Watk. on Copyh., vol. i., 312; Scriven on Copyh., 374.) It seems that coparceners are entitled to be admitted to copyhold tenements as one heir, and upon payment of one set of fees. (3 B. & Cr., 173.-[CHITTY.] (30) As where the admission is a vol untary act of the lord; which it is in some copyholds, grantable for lives, without renewal, &c. (31) It is now established as a universal rule, that where the fine upon the descent or alienation of a copyhold is arbitrary, it can not be more than two years' improved value. In ascertaining the yearly value, the quit-rents must be deducted, but not the land-tax. (Doug., 724.) The fine may be recovered by the lord in an action of assumpsit. (Ib.) But he has no right to it till the admittance of the tenant. (2 T. R., 484.) The lord assesses the fine at his peril; if he assess it too high, he is not entitled to recover it. But the assessment need not be entered on the roll of the court. (6 East, 56.)— [CHRISTIAN.] See, as to fines, Doug., 724, n.; 7 Bingh., 327; 2 B. & Ad., 350; 5 Mee. & W., 608; 10 Ad. & El., 236; 3 Scott, 623. m sometimes of villein socage.32 This, he tells us, is such as has been held of the kings of England from the Conquest downward; that the tenants herein, "villana faciunt servitia, sed [99] certa et determinata;" that they can not aliene or transfer their tenements by grant or feoffment any more than pure villeins can, but must surrender them to the lord or his steward, to be again granted out and held in villenage. And from these circumstances we may collect that what he here describes is no other than an exalted species of copyhold subsisting at this day, viz., the tenure in ancient demesne; to which, as partaking of the baseness of villenage, in the nature of its services, and the freedom of socage in their certainty, he has, therefore, given a name compounded out of both, and calls it villanum socagium. n mesne. Ancient demesne consists of those lands, or manors, which, Ancient dethough now, perhaps, granted out to private subjects, were actually in the hands of the crown in the time of Edward the Confessor or William the Conqueror, and so appear to have been by the great survey in the Exchequer called Doomsday Book. The tenants of these lands, under the crown, were not all of the same order or degree. Some of them, as Britton testifies, continued for a long time pure and absolute villeins, dependent on the will of the lord; and those who have succeeded them in their tenures now differ from common copyholders in only a few points. Others were, in grcat measure, enfranchised by the royal favor; being only bound, in respect of their lands, to perform some of the better sort of villein services, but those determinate and certain, as to plow the king's land for so many days, to supply his court with such a quantity of provisions, or other stated services; all of which are now changed into pecuniary rents and in consideration hereof, they had many immunities and privileges granted to them; as to try the right of their property in a peculiar court of their own, called a Court of Ancient Demesne, by a peculiar process denominated a writ of right close; not to pay toll or taxes; not to contribute to the expenses of knights of the shire; not to be put on juries; and the like." These tenants, therefore, though their tenure be absolutely [100] copyhold, yet have an interest equivalent to a freehold; for, notwithstanding their services were of a base and villenous original, yet the tenants were esteemed, in all other respects, to be highly privileged villeins; and especially for that their services were fixed and determinate, and that they could not be compelled (like pure villeins) to relinquish these tenements m L. 4, tr. 1, c. 28, § 5. a F. N. B., 14, 16. 。 C. 66. P F. N. B., 228. q 4 Inst., 269. r F. N. B., 11. s Ibid., 14. t Gilb., Hist. of Exch., 16 and 30. (32) Bac. Ab., tit. Tenure, P.; Com. Dig., Villenage; Cru. Dig., vol i., p. 295. VOL. II.-H 113 at the lord's will, or to hold them against their own: "et ideo," says Bracton, "dicuntur liberi." Britton, also, from such their freedom, calls them absolutely sokemans, and their tenure sokemanries; which he describes" to be "lands and tenements which are not held by knight service, nor by grand sergeantry, nor by petit, but by simple services, being, as it were, lands enfranchised by the king, or his predecessors, from their ancient demesne." And the same name is also given them in Fleta. Hence Fitzherbert observés," that no lands are ancient demesne but lands holden in socage; that is, not in free and common socage, but in this amphibious subordinate class of villein socage. And it is possible that, as this species of socage tenure is plainly founded, upon predial services, or services of the plow, it may have given cause to imagine that all socage tenures arose from the same original, for want of distinguishing, with Bracton, between free socage or socage of frank tenure, and villein socage or socage of ancient demesne. Lands holden by this tenure are, therefore, a species of copyhold,33 and, as such, preserved and exempted from the operation of the statute of Charles II. Yet they differ from common copyholds, principally in the privileges before mentioned; as, also, they differ from freeholders by one especial mark and tincture of villenage, noted by Bracton, and remaining to this day, viz., that they can not be conveyed from man to man by the general common law conveyance of feoffment and the rest, but must pass by surrender to the lord or his steward, in the manner of common copyholds; yet with this [101] distinction, that, in the surrender of these lands in ancient demesne, it is not used to say "to hold at the will of the lord," in their copies, but only, "to hold according to the custom of the manor."34 Tenant right. u C. 66 ▾ L. 1, c. 8. w N. B., 13. Kitchen on Courts, 194. (33) This is erroneous; see the next the freeholders of the manor who are note. truly tenants in ancient demesne, and their lands pass by common law conveyances; they form the court of ancient demesne, which is analogous to the court baron. The copyholders form the customary court. (See Third Real Property Report, p. 13; 3 Bos. & P., 382.) There are some estates held according to the custom of a manor, but not by copy of court roll, nor at the will of the lord. "These customary estates, known by the denomination of tenant right, are peculiar to the northern parts of England, in which border services against Scotland were anciently performed before the union of England and Scotland under the same sovereign. And although these appear to have Thus have we taken a compendious view of the principal and fundamental points of the doctrine of tenures, both ancient and modern, in which we can not but remark the mutual connection and dependence that all of them have upon each other. And, upon the whole, it appears that, whatever changes and alterations these tenures have in process of time undergone, from the Saxon era to the 12 Car. II., all lay tenures are now, in effect, reduced to two species: free tenure in common socage, and base tenure by copy of court-roll. I mentioned lay tenures only; because there is still behind Spiritual one other species of tenure, reserved by the statute of Charles tenure. II., which is of a spiritual nature, and called the tenure in frankalmoigne. a V. Tenure in frankalmoigne, in libera eleemosyna, or free Frankalalms, is that whereby a religious corporation, aggregate or moigne. sole, holdeth lands of the donor to them and their successors forever.y35 The service which they were bound to render for these lands was not certainly defined, but only, in general, to pray for the souls of the donor and his heirs, dead or alive; and, therefore, they did no fealty (which is incident to all other services but this), because this divine service was of a higher and more exalted nature. This is the tenure by which almost all the ancient monasteries and religious houses held their lands, and by which the parochial clergy, and very many ecclesiastical and eleemosynary foundations, hold them at this day; the nature of the service being upon the reformation altered, and made conformable to the purer doctrines of the [102] Church of England. It was an old Saxon tenure; and continued under the Norman revolution, through the great respect that was shown to religion and religious men in ancient times; which is also the reason that tenants in frankalmoigne were dis y Litt., § 133. z Ibid., 131. many qualities and incidents, which do not properly belong to villenage tenure, either pure or privileged (and out of one or other of these species of villenage all copyhold is derived); and, also, have some which savor more of military service by escuage uncertain, which, according to Litt., s. 99, is knight's service; and although they seem to want some of the characteristic qualities and circumstances which are considered as distinguishing this species of tenure, viz., the being holden at the will of the lord, and also the usual evidence of title by copy of court roll; and are alienable, also, contrary to the usual mode by which copyholds are aliened, viz., by deed and admittance thereon (if, indeed, they could be immemorially aliened at all by a Ibid., 135. b Bracton, 1. 4, tr. 1, c. 28, § 1. (35) Bac. Ab., Tenure (F); 1 Cruise Tenure by divine service. charged of all other services, except the trinoda necessitas, of repairing the highways, building castles, and repelling invasions; just as the Druids, among the ancient Britons, had omnium rerum immunitatem. And even at present, this is a tenure of a nature very distinct from all others; being not in the least feodal, but merely spiritual; for, if the service be neglected, the law gives no remedy by distress, or otherwise, to the lord of whom the lands are holden, but merely a complaint to the ordinary or visitor to correct it. Wherein it materially differs from what was called tenure by divine service;36 in which the tenants were obliged to do some special divine services in certain; as, to sing so many masses, to distribute such a sum in alms, and the like; which, being expressly defined and prescribed, could with no kind of propriety be called free alms, especially as for this, if unperformed, the lord might distrain, without any complaint to the visitor. All such donations are, indeed, now out of use; for since the statute of quia emptores, 18 Edw. I.," none but the king can give lands to be holden by this tenure; so that I only mention them because frankalmoigne is excepted by name in the statute of Charles II., and, therefore, subsists in many instances at this day. Which is all that shall be remarked concerning it; herewith concluding our observations on the nature of tenures. Seld., Jan., 1, 42. d Cæsar, De Bell. Gall., 1. 6, c. 13. (36) Bac. Ab., Tenure (G). (37) This statute enacts "that it shall be lawful to every freeman to sell at his own pleasure his lands and tenements, 116 f Litt., § 137. or part of them, so that the feoffee shall hold the same of the chief lord of the same fee by such service and customs as his feoffor held before." |